Van Den Berg v Sayers N.O and Another (2645/2015) [2018] ZAGPPHC 411 (12 June 2018)

Van Den Berg v Sayers N.O and Another (2645/2015) [2018] ZAGPPHC 411 (12 June 2018)

The court found that the disputes of fact regarding the existence of an oral lease and the scope of the suretyship are material and cannot be resolved on affidavit. Accordingly, the matter is referred to trial, with the applicant's notice of motion to stand as a simple summons and a declaration to be delivered. The attached funds are to be paid into the respondents' attorneys' interest-bearing trust account in terms of section 78(2A) of the Attorneys Act, to be held pending finalisation of the matter. Costs are reserved for determination by the trial court.

Citation
[2018] ZAGPPHC 411
Parties
Applicant: Jacques A Van Den Berg; Respondent: John Meyrick William Sayers N.O.; Respondent: Terssa Marion Sayers N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 June 2018
Case Number
2645/2015
Procedural Posture
Civil Application / Referral to Trial After Opposed Application and Counter Application
Outcome
Matter referred to trial; attached funds to be held in trust pending finalisation; costs reserved.
Judges
Neukircher
Legal Topics
Rescission of Judgment, Oral Lease Dispute, Suretyship Interpretation, Attachment and Restitution
Civil Procedure Land and Property Rescission of Judgment Oral Lease Dispute Suretyship Interpretation Attachment and Restitution

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Parties

Jacques A Van Den Berg

Applicant

John Meyrick William Sayers N.O.

Respondent

Terssa Marion Sayers N.O.

Respondent

Procedural Posture

Civil Application / Referral to Trial After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the funds attached pursuant to a rescinded default judgment should be restored to the applicant pending finalisation of the main action.
  2. 2 Whether the respondents' counter-application for payment is sustainable given the pending action and disputed facts.
  3. 3 Whether the suretyship extended beyond the termination of the written lease and covered the alleged oral lease.

Ratio Decidendi

The court found that the disputes of fact regarding the existence of an oral lease and the scope of the suretyship are material and cannot be resolved on affidavit. Accordingly, the matter is referred to trial, with the applicant's notice of motion to stand as a simple summons and a declaration to be delivered. The attached funds are to be paid into the respondents' attorneys' interest-bearing trust account in terms of section 78(2A) of the Attorneys Act, to be held pending finalisation of the matter. Costs are reserved for determination by the trial court.

Court Disposition

Matter referred to trial; attached funds to be held in trust pending finalisation; costs reserved.

Orders

  • This matter is referred to trial.
  • The applicant's notice of motion shall stand as a simple summons.